Thangaraju vs Govindasamy
2021 Latest Caselaw 1951 Mad

                                                            SA.No.962 of 2008

       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                             DATED : 29.01.2021

                                   CORAM

         THE HONOURABLE MR. JUSTICE T.RAVINDRAN

                             S.A.No.962 of 2008

Thangaraju                            ...               Appellant
                                      Vs.
Govindasamy                         ...                 Respondent

Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 12.08.2005 passed in A.S.No.50 of
2002 on the file of the Subordinate Court, Ariyalur, reversing the judgment
and decree dated 28.02.2002 passed in O.S.No.231 of 1996 on the file of the
Principal District Munsif Court, Ariyalur.

             For Appellant             : Ms.P.Mahalakshmi
                                         for Mr.K.Sathishkumar

                                JUDGMENT

Challenge in this second appeal is made to the judgment and decree

dated 12.08.2005 passed in A.S.No.50 of 2002 on the file of the

Subordinate Court, Ariyalur, reversing the judgment and decree dated

28.02.2002 passed in O.S.No.231 of 1996 on the file of the Principal

District Munsif Court, Ariyalur.

SA.No.962 of 2008

2.For the sake of convenience, the parties are referred to as per their

rankings in the trial Court.

3.The defendant in O.S.No.231 of 1996 is the appellant in the second

appeal.

4.Suit for recovery of money.

5.The case of the plaintiff, in brief, is that the defendant borrowed a

sum of Rs.20,000/- for his family expenses on 15.06.1993 and in evidence

thereof, executed the suit promissory note Ex.A1 in favour of the plaintiff

promising to repay the sum with interest as recited therein and subsequent

thereto, failed to repay the borrowed sum as promised, despite several

reminders and also the issuance of notice dated 27.12.1995 and not even

responded to the legal notice sent by the plaintiff as aforestated and hence,

according to the plaintiff, the suit has been laid.

SA.No.962 of 2008

6.The defence has been taken by the defendant contending that the

defendant had not received the sum of Rs.20,000/- from the plaintiff on

15.06.1993 and executed the suit promissory note as put forth in the plaint

and according to the defendant, the defendant's father Vadamalai Udaiyar

had approached the plaintiff, who is well versed in the Court affairs, in

connection with the family problems and the plaintiff had introduced him to

one Advocate by name K.S.R.Edison and at that point of time, for meeting

the Court expenses and advocate fees etc., as the defendant's father was

required to part with the sum of Rs.10,000/- and as the plaintiff had parted

with the abovesaid sum on his own to the advocate and thereafter, as the

family problems of the defendant's father had come to be settled out of the

Court and there was no necessity for institution of the suit, accordingly, the

plaintiff, for the purpose of the advancement of the sum of Rs.10,000/- as

aforestated, obtained a promissory note from the defendant's father by

doubling the amount advanced by the plaintiff and also for the purpose of

security, obtained the defendant's signature in the blank stamped papers and

the plaintiff, with an ulterior motive and to make unlawful gain, laid the suit

SA.No.962 of 2008

against the defendant's father on the basis of the abovesaid promissory note

for a sum of Rs.20,000/- and thereafter, the matter was discussed with the

Village Panchayat and the plaintiff in the abovesaid Panchayat had agreed

to withdraw the suit laid by him, if the defendant's father pay a sum of

Rs.10,000/- and the defendant's father had also paid the sum of Rs.10,000/-

to the plaintiff and the plaintiff had also withdrawn the suit laid against the

defendant's father in O.S.No.331 of 1997 and on the other hand, proceeded

to continue the prosecution of the present suit instituted by him on the

strength of the promissory note created based on the signature obtained by

the plaintiff in the blank stamped papers and therefore, the plaintiff's suit is

not maintainable in law and according to the defendant, the plaintiff has

also received a sum of Rs.4,500/- from the Advocate K.S.R.Edison, which

amount had been handed over by the defendant's father to the advocate and

when the defendant demanded to return the said amount, the plaintiff

enraged over the same, is continuing with the present suit and therefore, the

plaintiff has no cause of action to lay the suit and the suit is liable to be

dismissed.

SA.No.962 of 2008

7.In support of the plaintiff's case, PWs1 & 2 were examined and

Exs.A1 to A3 were marked. On the side of the defendant, DWs1 & 2 were

examined and Ex.B1 was marked.

8.On an appreciation of the materials placed on record both oral and

documentary and the submissions put forth by the respective parties, the

trial Court was pleased to dismiss the plaintiff's suit. On appeal preferred

by the plaintiff, the first appellate Court, on an appreciation of the materials

available on record and the submissions projected by the respective parties,

was pleased to set aside the jugment and decree of the trial Court and by

way of allowing the appeal preferred by the defendant, decreed the suit in

favour of the plaintiff as prayed for. Impugning the judgment and decree of

the first appellate Court, the present second appeal has been preferred by the

defendant.

9.In this matter, though notice has been sent to the plaintiff, the

plaintiff, despite the receipt of the same, has not chosen to enter appearance

SA.No.962 of 2008

either in person or through counsel. When the matter is taken up for hearing,

accordingly, the respondent/plaintiff, being called and remaining absent, has

been set exparte.

10.The suit has been laid by the plaintiff based on the promissory

note. According to the plaintiff, the defendant borrowed a sum of

Rs.20,000/- from him on 15.06.1993 and in evidence thereof, executed the

suit promissory note Ex.A1 in his favour promising to repay the borrowed

sum with interest as recited therein. The signature contained in the suit

promissory note Ex.A1 has not been controverted by the defendant. It is

also noted that the plaintiff has sent the legal notice calling upon the

defendant to pay the borrowed sum as promised, which has been marked as

Ex.A2. The defendant has not been disputed the receipt of the legal notice

and the acknowledgment card received from him has been marked as Ex.A3.

The defendant has not responded to the legal notice nor complied with the

demand made by the plaintiff therein. Hence, it is seen that the plaintiff has

been necessitated to institute the suit against the defendant.

SA.No.962 of 2008

11.The defendant would plead that his father had approached the

plaintiff in connection with the family problems and the plaintiff had

introduced him to one Advocate K.S.R.Edison and for meeting the Court

expenses and advocate fees etc., the plaintiff had, at that point of time, paid

a sum of Rs.10,000/-. However, the family problems got settled without the

necessity of the institution of the suit and in connection with the payment of

Rs.10,000/-, according to the defendant, the plaintiff had obtained the

signature in the promissory note from the defendant's father by doubling the

amount lent by the plaintiff and also for the security purpose, obtained the

signature of the defendant in the blank stamped papers and thus, according

to the defendant, utilising the said signature of the defendant in the blank

stamped papers, the suit promissory note had been created by the plaintiff

and falsely has instituted the suit. It is thus noted that the defendant has not

disputed the signature available in the promissory note. According to the

defendant, the suit promissory note is devoid of consideration as he had not

received a sum of Rs.20,000/- from the plaintiff on 15.06.1993 as put forth

in the plaint.

SA.No.962 of 2008

12.Even according to the defendant, the plaintiff had withdrawn the

suit laid against the defendant's father in O.S.No.331 of 1997 following the

Panchayat settlement. However, with reference to the Panchayat Settlement,

the plaintiff has disputed the defence version and would state that he has not

agreed to withdraw the suit levied against the defendant and despite the

abovesaid position, there is no material placed on record worth acceptance

on the part of the defendant about the convening of the Panchayat and the

plaintiff's consent for the withdrawal of the suit laid against the defendant.

In such view of the matter, the abovesaid defence version, as such, cannot

be countenanced. If, according to the defendant, his father had paid a sum

of Rs.10,000/- lent by the plaintiff, nothing prevented the defendant's father

or the defendant from retrieving the documents said to have been given by

them to the plaintiff as put forth in the written statement. In the event of the

plaintiff refusing to hand over the same, nothing prevented the defendant

from initiating necessary action against the plaintiff in the manner known to

law. The defendant has not endeavored to move his little finger against the

plaintiff with reference to the retrivement of the documents containing the

SA.No.962 of 2008

signature said to have been handed over by the defendant as put forth in the

written statement. As above noted, the defendant has also failed to establish

the Panchayat, whereunder, the plaintiff had agreed to withdraw the present

suit laid against the defendant. The defendant would only produce the letter

said to have been given by the advocate marked as Ex.B1. Ex.B1 is not at

all related to the present suit as such and when the author of Ex.B1 has not

been examined and when Ex.B1's authenticity is being seriously contested

by the plaintiff and when adding further the defendant has also not

responded to the legal notice sent by the plaintiff by sending a reply notice,

all put together, it is found that Ex.B1 would be of use to sustain the

defence version.

13.Considering the materials available on record, as rightly concluded

by the first appellate Court and considering the evidence of the plaintiff as

PW1 and the attestor, who has been examined as PW2, when it is noted that

they have clearly deposed about the borrowal of the suit amount by the

defendant from the plaintiff and the execution of the suit promissory note by

the defendant in favour of the plaintiff and the defendant has failed to

SA.No.962 of 2008

respond to the legal notice sent by the plaintiff and the defendant has not

established the defence version as put forth by him in the written statement

and when there is a presumption that the suit promissory note is supported

by consideration as provided under Section 118 of the Negotiable

Instrument Act, it is for the defendant to place acceptable materials to rebut

the said presumption. Considering the abovesaid factors and when the

defendant has failed to rebut the presumption by placing reliable and

convincing materials as rightly concluded by the first appellate Court, the

judgment of the trial Court relying upon the defence version without any

material to sustain the same and thereby, rejecting the plaintiff's case, as

such, cannot be upheld in the eyes of law.

14.The first appellate Court, on a proper appreciation of the materials

available on record, both on the factual matrix and on the point of law, has

rightly decided that the defendant has failed to rebut the presumption raised

against him under Section 118 of the Negotiable Instruments Act and

consequently, rightly decreed the suit in favour of the plaintiff by setting

aside the judgment and decree of the trial Court. No valid reason is

SA.No.962 of 2008

projected warranting interference in the judgment of the first appellate

Court.

15.For the reason aforestated, no substantial question of law is found

to be involved in this second appeal. In conclusion, the judgment and

decree dated 12.08.2005 passed in A.S.No.50 of 2002 on the file of the

Subordinate Court, Ariyalur, reversing the judgment and decree dated

28.02.2002 passed in O.S.No.231 of 1996 on the file of the Principal

District Munsif Court, Ariyalur are confirmed and consequently, the second

appeal is dismissed. No costs. Consequently, connected miscellaneous

petition, if any, is closed.

Index : Yes/No                                                    29.01.2021
Internet:Yes/No
sms

Copy to

1.The Subordinate Court, Ariyalur.

2.The Principal District Munsif Court, Ariyalur.

3.The Section Officer, V.R.Section, High Court, Madras.

SA.No.962 of 2008

T. RAVINDRAN, J.

sms

S.A.No.962 of 2008

29.01.2021